Most of the provisions of the Fair Use Principles are helpful, practical, common-sense features for UGC websites like YouTube, MSN SoapBox, and DailyMotion -- such as notifying the uploader of content that is removed as a result of a DMCA 512 takedown notice or establishing a process for humans to second-guess filtering decisions made by fingerprinting technologies. 

But two aspects of the Fair Use Principles are rather eye-opening.  One is this statement: "Because the precise contours of the fair use doctrine can be difficult for non-lawyers to discern, creators, service providers, and copyright owners alike will benefit from a more easily understood and objectively ascertainable standard."  This is a conceptual about-face from previous attitudes of the EFF and other signatories to the Fair Use Principles such as Public Knowledge. 

The problem with fair use is precisely that it is not "objectively ascertainable," meaning that humans (such as those sitting in a courtroom) must decide whether a use is fair or not.  But in a world governed by technology, where technological means can be used to control access to content, fair use must be implementable in technologically feasible ways -- as we (and others) have been saying for quite some time -- otherwise the technology is ultimately worthless and policy decisions fall back to the traditional, inefficient, often capricious legal system. 

Thus the above statement is a welcome retreat from the EFF's more typical stance on this issue, which has seemed to rely on fair use as a means of keeping digital copyright policy disputation within the domain of the traditional legal system, and has shown an inherent distrust of technological solutions -- a stance that we have found to be both counterproductive and slightly hypocritical given the EFF's overriding belief in the power of technology. 

Yet the Fair Use Principles don't offer much in the way of objectively ascertainable guidelines for determining fair use.  Asking content owners to avoid issuing takedown notices for "noncommercial, creative, and transformative" content uses is not particularly helpful.  Asking them to abide by a rule that at least 90% of a copyrighted work be contained in a challenged upload, on the other hand, is a step in the right direction -- even if movie studios are unlikely to find such a rule to their liking.

The other interesting aspect of the Fair Use Principles is that most of them place the burden of building any technology to implement them on the shoulders of the UGC sites, not the content owners.  Some of these are trivial, such as providing a website where users who want to challenge DMCA takedowns can provide counternotices. 

But others are less trivial.  In particular, Principle 2.a. specifies a "three strikes" rule regarding automated filtering mechanisms: the video of the uploaded file must match that of a registered copyrighted work; the audio track must also match; and at least 90% of the content must be in the uploaded file.  This places a burden on UGC site operators to implement certain specific technologies, which the original UGC principles sought to avoid. 

From the UGC sites' point of view, much of the disputes over filtering and takedowns is not about high principles of copyright, free expression, or fair use; it is about expending as little effort as possible to satisfy the copyright demands of major content owners while doing as much as possible to attract and keep users.  Therefore, we would not be surprised if the Fair Use Principles' authors find themselves somewhat at odds with the constituency that they want to help the most. 

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